Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal. UPDATE: The Colorado Supreme Court affirmed this decision on January 27, 2014.

Division IME Forms Including a new one WC78

You can access numerous forms pertaining to DIME's or Division IME's at this webpage maintained by the Division. It includes a new form which pertains to requesting a DIME to assess maximum medical improvement (MMI) after 18 months. Usually your treating physician determines MMI as soon as possible but there are times when he has not addressed it despite the passage of much time and treatment. The insurer may then seek to arrange a DIME to determine MMI. This new form WC78 is part of that process. Be aware that this 18 month DIME is addressing MMI. If impairment is also addressed it does not mean that is anything more then informational. In a recent Industrial Claims Appeal case I call Baca the insurer went with an 18 month DIME and then went with that DIME's impairment rating which was zero. They filed a Final Admission trying to close the case. The local judge ruled against them and struck the Final Admission. directing that the claimant return to the treating physician for the rating. The higher panel in effect stopped the appeal because that ruling did not deal with money or benefits but the case makes us all aware that an 18 month DIME may not address impairment in a way that can be acted upon by the insurer. Of course the Baca case may not be over but the form WC78 issued shortly thereafter indicates any rating by a 18 month DIME is informational only.

SB 11-199

While this senate bill 11-199 is awaiting the governor's signature I expect it to become law. There are 4 provisions in the bill worth noting. First, it requires that the insurer pay costs in advance, if requested by the claimant, for an insurer IME or vocational evaluation. This means the cost for the claimant to travel, food and even a hotel must be paid or the claimant can refuse to attend. If they pay and claimant does not attend they can get an offset from future compensation due the claimant. Next, a Final Admission must admit for future recommended treatment by the authorized doctor unless there is a record of a contrary medical opinion. This prevents the insurer from disregarding physician maintenance treatment once the claimant reaches MMI. At times insurers never admit for further treatment even though its need is undisputed. A claimant may think or even be told by the doctor he can get further treatment only to be denied by the insurer and the bill seeks to avoid such a practice. Third,procedurally it corrects a discovery matter by not requiring those represented by an attorney to first ask permission before starting discovery. That extra step (documenting you asked permission) seemed just a waste of time and paper. Last, the bill makes it clear that any lump sum request regardless of the date of injury is not a waiver of the right to seek permanent total benefits. For those readers not familiar with the last issue the history of it is a claimant would receive an admission for permanent partial benefits of a certain amount, let us say $30000.00, and yet feel he was much more disabled so he'd seek permanent total disability benefits. Since by law the admission had to be paid out every other week the claimant sought it in a lump sum. That was deemed a waiver of his claim for permanent total benefits. The poor claimant was stopped in his tracks by accepting the lump sum perhaps just to pay bills and other expenses. You had to be careful to avoid this but the law has been changed. A total disability claim is no longer waived by accepting a lump sum.

New Case- Respondents Cannot Pick and Choose

In this recent case just decided by the Colorado Court of Appeals that we'll call Paint Connection Plus the Respondents appealed the imposition of penalties. What happened is that the claimant's authorized or rating physician noted two injuries. For the shoulder where the claimant had two surgeries he said the claimant was at MMI (maximum medical improvement) with a rating for permanent impairment. However for the cervical area he said the claimant was not at MMI. Respondents alleged that all along they only admitted the shoulder was a work injury so they filed a Final Admission on the rating for the shoulder and denied for the cervical area. The claimant sought penalties and to strike the FAL (Final Admission of Liability). Respondents lost and appealed. At the Court of Appeals the decision was affirmed against the Respondents Paint Connection Plus and its insurer. The court noted that MMI is not divisible and the Final Admisssion was improper. There is no partial MMI and Respondents had other ways to proceed when they questioned the cervical injury. Also the FAL did not attach the worksheets used by the doctor in his shoulder rating and this was a separate ground to strike the FAL. The court ruled there can be no attachment of incomplete reports to a FAL. On penalties it is up to the judge and here they were upheld as Respondents were unreasonable in their actions.

What is Your Impairment worth?

I received a comment on this from someone and I thought it deserved a posting on this Blog. First any impairment rating may or may not be correct. Any of the parties may be able to dispute the rating or number and this often happens for the claimant. Do not take the first impairment rating as the end of the story. It is often wrong and even a medical opinion you are at maximum medical improvement can be wrong. When you receive a rating consider questioning it (legally this is an involved process and best done by your attorney). In any event let's say that the rating you receive is a high one. Let's also assume you are not permanently and totally disabled (if you might think you are get with an attorney right away). Lastly let's assume it is truly a whole person rating as certain injuries are not. Even then if you receive say a valid 20% whole person impairment rating what is it worth? Believe it or not there are other variables to consider. There is an age variable. There is a variable for your wage. The lower your age the higher the worth of the impairment. The higher your wage the higher the worth of the impairment. These variables make it essential that the calculation be performed on a case by case basis. One person may get $1000 for every one percent whole person and another $4000 for each percent or even more. Colorado also puts limits or caps on how much you can get so there simply is no easy answer here. Finally if the insurer agrees with the rating they will file a Final Admission often seeking to close the case. Please realize you must also consider your future medical needs. Insurers will try to limit all benefits so take any Final Admission as an effort to end your claim or at least greatly restrict it. This means any Final Admission requires a very careful analysis to protect your interests. Do not accept it at face value without doing so. We almost always object to Final Admissions and take timely and appropriate legal action to advance the cause of the claimant.

Nov. 13th One More Case...Montoya

In my last post I noted two cases decided on November 13th by the Colorado Court of Appeals. Actually one more case decision was issued. In Montoya, the authorized treating physician rated the claimant at 19% impaired. The insurer decided to dispute the rating and started up the process to seek a Division IME. That is the only way either side can dispute the rating so provided. Then the same doctor altered his opinion to reduce it because of a prior injury. The number went down to 15%. Of course now the insurer decided it could accept the rating so it cancelled the Division IME and filed a Final Admission in the case to close it but accept the amended rating. The claimant said the insurer could not do that but the court said the insurer could just that. The claimants reasoning was that the insurer was bound to go forward with the Division IME or be bound by the original rating. The court however had no problem with the insurer accepting the amended rating. While I understand the decision you have to ask what if the claimant had received a low rating and sought a DIME but then the doctor increased the rating. Could the claimant cancel the DIME and count on the insurer filing something to respond to that higher rating? Anyway read the Montoya case here.

Three Choices

Many times there is a point where a claimant has 3 choices to choose from in a case. He is faced with a Final Admission after treatment where he is likely rated by the treating doctor as to his impairment. He is given a 30 day deadline to act. His choices are to accept the Final Admission filed by the insurer or to seek a DIME (Division Independent Medical Exam) or to try to settle out without a DIME. He's on a deadline so it can be a tough choice to make. Questions to consider include are you at MMI (maximum medical improvement)? At times treatment ends too soon and more can be done. Another consideration is the rating. Is it too low or high enough to worry that if you go for a DIME will that doctor lower the rating? Yes that can happen when you open the door to a medical review of the treating doctors rating. What about future care such as ongoing medications? Is that allowed for or is it less then expected or desired? What about your restrictions? Can you barely lift a gallon of water yet the doctor said you can lift 20 pounds? Some decisions are easy. If the treating doctor releases you without impairment or anything further and returns you to full duty and you disagree that choice is easy. You go for a DIME (after objecting to the Final Admission which the insurer rushed to you). Each case is different but the statistics seem to show that many try for a DIME. This occurs because the treating doctor who was handpicked by your employer may be less favorable to you. But if the rating is high enough then we have a tougher decision to make. Each of the three choices comes with a negative. If you go for a DIME the new opinion may lower the rating or agree with the treating doctor or alter something else like your maintenance care. If you accept the Final Admission then your case closes based on that Final Admission (read it carefully because it is what is in writing that counts not what the adjustor tells you). You do keep your right to petition to reopen for a while (6 years from date of injury or 2 years from date of last money payable) but that does not mean if you worsen you can reopen the claim easily. It can take a battle. Insurers often question reopening especially when a new job or event has aggravated it. You can just try to settle it all out but that means closure forever in most cases. So you may get extra dollars but don't plan to be able to return for care if you get worse or if it turns out you cannot work at all. Again for most cases the choice is to go for a DIME but each choice has consequences so in some ways it is a choice between evils. We all want open medical benefits and high compensation but seldom is that provided. Lastly each person has personal factors to consider. Some can be ready to work and just want it over with. Others may have lost their trade and need to maximize benefits. Still others really feel they need more treatment. Tough choices and asking others for advice can be tricky. Only your lawyer knows the current state of the law. He also knows the doctors involved whichever way you go. Beyond that you may have to consider if you are permanently and totally disabled and this enters into any review of the choices. The point is that it is never a simple matter and each case is unique so take the time to think it through with your lawyers help. Going it alone is seldom wise as the decision you make you will carry with you the rest of your life.

Final Admissions

In Colorado when a Final Admission of Liability is filed in a workers comp matter this is an extremely important document. In essence the insurance or self-insured party/employer is saying that they wish to close the claim based upon precisely what they state within the Final Admission itself. It may provide for permanent benefits or not. It may provide for further medical care or not. It may say any number of things which you might wish to question. The key thing to realize is that you are on a deadline of 30 days from date of mailing to act as provided by the law or your claim will likely be closed as provided in the Final Admission. Now there can be exceptions where the Final Admission is defective and can be struck down but that is very rare. So anyone receiving a Final Admission should know they must act promptly to question it. And this does not mean just calling up someone at the insurance. The required language on these Final Admissions sets forth how to properly act to object and follow through on the objection. Since this is usually a complicated matter consult with an attorney or at least call the Division of Workers Comp customer service for further information. Their number is 1-888-390-7936. At my office we routinely object to any Final Admission and go further to protect the claimant, such as moving to obtain a Division IME (doctor through the state to examine and provide another opinion). If we do not seek a DIME doctor we still usually then apply for a hearing if appropriate. It is a judgement call we make depending on the circumstances for our clients. However the important thing here is to realize you do not have to accept the insurance company position in the Final Admission but must act fast. Almost always when we object and go forward it is to obtain more benefits. Additional benefits possible include more medical treatment and more compensation but again it is a call we make on a case by case basis. Simply put: beware of any Final Admission!